Balkinization  

Thursday, September 02, 2010

Torture and Littering

David Luban

Today the Ninth Circuit Court of Appeals overturned the conviction of Daniel Millis, convicted of littering because he left sealed bottles of drinking water in a desert wildlife refuge. He explained that he left them "along frequently traveled routes for unlawful entrants to the United States." He belongs to a group called "No More Deaths," and the opinion quotes his testimony: "humanitarian aide [sic] is never a crime."

The majority overturned his conviction because a reasonable person might not understand that leaving drinking water for people dying of thirst is littering. The United States countered that the water bottles constitute "garbage" in the sense of the statute. After foraging through some dictionary definitions of "garbage" and "discarded," the majority concludes that the regulation is too ambiguous to enforce in this case.

Judge Jay Bybee - he of the torture memo - dissents. Littering is littering, and Bybee finds that the regulation is as clear as a sunny day in the desert. This is the same Jay Bybee who thinks that terms like "torture" and "severe suffering" are so vague that it would be unfair to apply statutes prohibiting them to interrogators who waterboard people and keep them awake for a week at a time, naked and hanging in chains.



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